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Hosein v. Edman

Court of Appeals of Connecticut

July 25, 2017

NERISSA HOSEIN
v.
SCOT EDMAN ET AL.

          Argued April 12, 2017

          Daniel P. Scholfield, with whom, on the brief, was Brendan J. Keefe, for the appellant (plaintiff).

          James E. Coyne, with whom, on the brief, were Colleen D. Fries and Joseph M. Walsh, for the appellee (defendant Department of Transportation).

          Sheldon, Keller and Prescott, Js.

         Syllabus

         The plaintiff sought to recover damages for personal injuries she sustained when her motor vehicle collided with a motor vehicle owned by the defendant Department of Transportation and operated by the defendant E, an employee of the department, in the course of his employment. In an amended complaint, the plaintiff alleged a claim against the department for vicarious liability, claiming that she was traveling southbound on a roadway in Meriden when the vehicle operated by E moved from a stopped position on the shoulder into the travel lane and suddenly, without warning, struck the plaintiff's vehicle from the right side. Despite the allegations in the amended complaint, the plaintiff testified at trial that she never observed the department's vehicle move, while E testified that his vehicle was parked when it was struck from behind by the plaintiff's vehicle. Following a trial to the court, the trial court rendered judgment in favor of the department, and the plaintiff appealed to this court. She claimed that the trial court improperly discredited the testimony of her expert witness, C, an accident reconstructionist, and effectively precluded C's testimony without affording her an evidentiary hearing.

         Held that the plaintiff's claim that the trial court effectively precluded C's testimony was unavailing; although that court initially sustained several of the department's objections to C's testimony, it ultimately admitted his testimony in full and repeatedly stated to the parties that it was admitting all of C's testimony into evidence so that it could later decide what weight, if any, to afford C's testimony in deciding the issues before it, which was within the court's province to do as the trier of fact, and even though the trial court ultimately determined that C's testimony was based on conjecture and speculation and did not rely on it in deciding the issues presented, that statement was indicative of the court's weighing, considering, and ultimately rejecting the substance of C's testimony, not its preclusion of the testimony as evidence at trial.

         Procedural History

         Action to recover damages for the named defendant's alleged negligence, and for other relief, brought to the Superior Court in the judicial district of New Haven and tried to the court, Hon. Howard F. Zoarski, judge trial referee; judgment for the defendant Department of Transportation; thereafter, the court, Hon. Howard F. Zoarski, judge trial referee, denied the plaintiff's motion for a new trial, motion to reargue, motion for articulation, and motion to set aside the verdict, and the plaintiff appealed to this court; subsequently, the court, Hon. Howard F. Zoarski, judge trial referee, issued a corrected memorandum of decision. Affirmed.

          OPINION

          SHELDON, J.

         The plaintiff, Nerissa Hosein, commenced this action against the defendant Department of Transportation (department) to recover damages for injuries she allegedly suffered due to the department's vicarious negligence on December 14, 2011, in a motor vehicle collision between her personal automobile and a department owned vehicle. The plaintiff claimed that the collision and her resulting injuries were caused by the negligence of a department employee, Scot Edman, who was then operating the department's vehicle in the course of his employment duties.[1] After a bench trial, the court rendered judgment in favor of the department on the grounds that the plaintiff had failed to prove her claim of negligence by a preponderance of the evidence and, in fact, that the plaintiff's own negligence was the proximate cause of the collision and injuries, in that she had failed to keep a proper lookout and failed to keep her vehicle under proper control at or about the time of the collision.

         The plaintiff's sole claim on appeal is that the trial court erred in completely discrediting the testimony of her expert witness, an accident reconstructionist, and thereby ‘‘effectively precluding'' that witness' testimony, without affording her an evidentiary hearing pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998). We conclude that the trial court did not preclude the testimony of the plaintiff's expert, but, rather, admitted that testimony in its entirety, before ultimately deciding not to afford it any weight. Accordingly, we affirm the judgment of the trial court.

         On December 14, 2011, at approximately 9:00 a.m., the plaintiff was traveling southbound on Frontage Road in Meriden, approaching the point where it turns into an on-ramp to Route 15, when she observed the department's vehicle, which was then being operated by Edman, parked on the grass on the right side of the roadway. As she was passing by the department's vehicle, she heard a loud noise, after which her vehicle flipped over onto its roof, and then began to slide forward and across the road. Although the plaintiff testified that her attention, as she was passing the department's vehicle, was focused forward instead of to her right, and thus she never saw the department's vehicle move, she alleged in her complaint that Edman ‘‘moved [the department's vehicle] from a stopped position on the shoulder [of the roadway and] into the [travel] lane, suddenly and without warning, and struck the [plaintiff's] motor vehicle . . . from the front right side . . . .''

         The department denied the plaintiff's allegation that Edman had caused the collision between her vehicle and his department owned vehicle by suddenly moving into the travel lane of the roadway. Edman testified that, on the morning of the accident, he had been setting up construction signs along the roadway in preparation for landscaping work that was scheduled for that day. Edman testified that his vehicle was parked ‘‘two thirds in the grass'' on the side of the road, that its flashing lights were activated, and that its wheels were ‘‘cocked'' to the left pursuant to the department's policy, in order to prevent harm to workers who might be working on the side of the road, in the event that the vehicle was struck from behind. He placed a white sign along the side of the road that warned of construction ahead, then returned to his vehicle and fastened his seat belt. He recalled that he was just about to put his vehicle into drive when it was struck from behind. He had not yet looked in his rearview mirror, so he did not see ...


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